This will be done while keeping in mind the laws of the country or state in determining the enforceability of the agreement. Fr example, acourt may be approached to rule on whether it is appropriate or not to carry out an arbitration process in a bid to protect consumers from an abusive arbitration process. Tis is known as unconscionability as in the case of Iberia Credit Bureau V Cingular wireless (2004) where an arbitration clause was invalidated, (ealey, LLitigation process allows for lack of confidentiality of highly sensitive opposed to the arbitration process, wich uphold confidentiality.
Tis is especially so if national oil companies are on trial. Te companies may lawfully obtain confidential information, wich will give them a tactical advantage that enables them to win cases (Beckerman, J Sometimes this information though very sensitive to national security is not very relevant to the case. Tis is not so in the arbitration process whereby the parties involved are only allowed to produce documents that are bound to influence the decision of the court thus inhibiting the ability plaintiff to be at a better position due to the tactical advantage that they may gain.
Te litigation process is quite inflexible compared to arbitration. Tis is because the judges presiding over the cases are usually not experts in the OG industry. Athough they are allowed to call upon the use of specialists in the relevant fields to resolve or dispute evidence, tey generally only use then if particular substantive evidence is needed. B using arbitration however, prties are allowed to appoint a neutral party to review the if arbitration panel believes reviewing the documents themselves is inappropriate (Wesley, J This allows for the panel to select an expert who is qualified to rule over the matter.
Te litigation process is seen to be more politically charged compared to the arbitration process. Astandoff point is often created when national oil companies insist that they wish to be tried in their own country while private oil entities prefer an environment that seems less politically charged. Te foreign investors may resolve to seek protection of foreign judicial in order mitigate a situation that they think is biased towards the national oil companies that are being tried in their home countries (Mouwad, JOther than litigation and arbitration, tere are other methods of conflict. ..
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